Montesquieu
 

VII.13 On punishments established by the emperors against the debauchery of women

The Julian Law esta­bli­shed a penalty on adul­tery. But far from this law, and others made on that sub­ject since, being a sign of the sound­ness of their good ways, they were on the contrary a sign of their depra­vity.

The whole poli­ti­cal sys­tem with res­pect to women chan­ged in the monar­chy. The pre­ten­sion was no lon­ger to esta­blish the purity of their morals but to punish their cri­mes. New laws were made to punish those cri­mes only because vio­la­tions which were not those cri­mes were no lon­ger being puni­shed.

The fright­ful moral exces­ses quite obli­ged the empe­rors to make laws to halt sha­me­less­ness at a cer­tain point, but it was not their inten­tion to cor­rect morals in gene­ral. Positive facts rela­ted by the his­to­rians prove this bet­ter than all those laws could ever prove the contrary. We can see in Dio the conduct of Augustus in this regard, and how, both in his præ­tor­ship and in his cen­sor­ship, he elu­ded the demands made to him.1

What we do find in the his­to­rians is rigid judg­ments han­ded down under Augustus and Tiberius against the sha­me­less­ness of a few Roman ladies ; but in acquain­ting us with the spi­rit of those rei­gns, they acquaint us with the spi­rit of those judg­ments.

Augustus and Tiberius inten­ded mainly to punish the debau­chery of their women rela­ti­ves. They were puni­shing not moral dis­so­lu­te­ness, but a cer­tain crime of impiety or lese-majesty which they had inven­ted,2 use­ful for res­pect, and use­ful for their ven­geance. Which is why the Roman wri­ters rise up so loudly against this tyranny.

The penalty of the Julian law was mild.3 The empe­rors hoped that judg­ments would increase the penalty of the law they had made. This was the sub­ject of the his­to­rians’ invec­ti­ves. They were not exa­mi­ning whe­ther the women deser­ved to be puni­shed, but whe­ther the law had been vio­la­ted in order to punish them.

One of the prin­ci­pal aspects of the tyranny of Tiberius was the abuse he made of the old laws.4 When he wan­ted to punish some Roman lady beyond the penalty impo­sed by the Julian Law, he re-esta­bli­shed the domes­tic court against them.5

These pro­vi­sions with res­pect to women regar­ded only the sena­tors’ fami­lies, and not the peo­ple’s. They wan­ted pre­texts for accu­sa­tions against the great, and women’s deport­ments could pro­vide them in abun­dance.

In sum, what I have said about moral sound­ness not being the prin­ci­ple of the govern­ment of one man alone was never bet­ter veri­fied than under these first empe­rors, and anyone who doubts this has only to read Tacitus, Suetonius, Juvenal and Martial.

As they have brought to him a young man who had married a woman with whom he had earlier had an improper relationship, he long hesitated, daring neither to approve nor to punish these things. Finally, regaining his composure : “The seditions have been the cause of great harm,” he said ; “let us forget them.” (Dio, book LIV.) The senators having requested statutes covering women’s morals, he eluded this request, saying that they should chastise their wives, as he did his own ; upon which they entreated him to tell them how he treated his wife (a most indiscrete question, it seems to me).

Culpam inter viros et fœminas vulgatam gravi nomine læsarum Religionum appellando, clementiam majorum suasque ipse leges egrediebatur [‘Calling, as he did, a vice so habitual among men and women by the awful name of sacrilege, he went far beyond the indulgent spirit of our ancestors, beyond indeed his own legislation.’] (Tacitus, Annals, book III).

This law is related in the Digest ; but the penalty is not listed. It it assumed that it was nothing but relegation, since the penalty for incest was only deportation (Leg. si quis viduam, following De questionibus).

Proprium id Tiberio fuit scelera nuper reperta priscis verbis obtegere (Tacitus).

Adulterii graviorem pœnam deprecatus, ut exemplo majorum propinquis suis ultra ducentessimum lapidem removeretur, suasit. Adultero Manlio Italiâ atque Africa interdictum est [‘For her adultery, he deprecated the severer penalty, and advised that she should be removed by her kinsfolk, after the example of our forefathers, to more than two hundred miles from Rome. Her paramour, Manlius, was forbidden to live in Italy or Africa.’] (Tacitus, Annals, book II.)